Publication of Digest of Decisions by Rights Commissioner Service - Jan '09

The Labour Relations Commission (LRC) published a Digest of Decisions in 2008 which summarised a sample of Decisions made by the Rights Commissioner Service. The report is aimed at assisting parties to prepare for a hearing in front of a Rights Commissioner.

The Rights Commissioner Service was originally established to perform a problem-solving role by assisting in the resolution of small-scale disputes in a non-legalistic manner. However, it has gradually acquired a more encompassing quasi-judicial role with respect to adjudication on employment rights disputes. The Decisions of the Rights Commissioner are confidential to the parties involved, and are not reported publicly. This unfamiliarity with the processes of the Rights Commissioner can make it difficult for employers when faced with correspondence from the LRC stating that a complaint is being lodged against them by an employee/former employee.

The Digest is to be welcomed as it provides greater insight into the processes and outcomes of the Service, while not impinging on the privacy and confidentiality of the parties. The Digest includes information on Decisions under a variety of Acts and guidance regarding the submission of referrals and adjournment requests.

The volume of referrals to the Rights Commissioner has been increasing on a constant basis, from 4,749 referrals in 2004 to 9,077 referrals in 2008. Referrals can be made under a large number of pieces of employment legislation, but the most common are:

Some of the interesting cases summarised in the Digest include the following.

Case 1

The Claimant worked for the Respondent from January 2006 until August 2007. She went on maternity leave in March 2007 and was due to return to work in October 2007. In August she sent a letter of resignation to her employer. In September the Respondent informed her that as she had not fulfilled her contractual obligation to give 3 months notice, the company would not pay her outstanding Annual Leave entitlement. The Claimant stated that she was entitled to 10 days Annual Leave and 5 Public Holidays.

The Respondent argued that for a small company the suddenness of the resignation had created problems for it, and it was difficult to get a replacement.

The Rights Commissioner upheld the complaint and required the Respondent to pay the claimant €2,160 for the outstanding Annual Leave and Public Holidays, and awarded an additional €4,000 for compensation for breach of the Organisation of Working Time Act, 1997.

What is notable about this award is that it included an amount in compensation for breach of the Act in addition to the actual amount due in respect of the Annual Leave and Public Holidays. The employer could have avoided this loss entirely if it had complied with the requirements of the legislation which are very clear on this matter. An employee's entitlement to Annual Leave and Public Holidays cannot be offset against any other difficulties an employer may face when an employee resigns without working out their full notice.

Case 2

The Claimant was employed from July 2007 until November 2007. He complained that he was owed payment for Annual Leave and Public Holidays when his employment was terminated.

The Respondent submitted that the Claimant was dismissed and that there was a verbal agreement to withhold €1,000 which was due in Annual Leave and Public Holiday pay to reimburse the employer for goods and property taken by the Claimant while in the employment.

The Rights Commissioner referred to the Payment of Wages Act, 1991 which states:

"an employer shall not make a deduction unless the employee has given his prior consent in writing to it".

The Rights Commissioner found that no such consent had been given, and ordered the Respondent to pay the Claimant for the outstanding holiday pay (€1,039).

Similar to Case 1 above, this case demonstrates that the entitlement to outstanding pay for Annual Leave/Public Holidays is a separate issue to any other losses the employer may wish to recoup. If the employee had agreed to cover the financial cost of the goods/products taken, and agreed in writing to allow the outstanding pay for Annual Leave/Public Holidays to be used to meet this cost, then the employer could have withheld the payment. In the absence of such written agreement, the employer had no right to retain these payments.

Case 3

The Claimant was employed by the Respondent from June 2006 until January 2007. He claimed that he did not receive appropriate rest breaks, that he was required to work in excess of 48 hours per week, and was not properly notified of the requirement to work overtime.

The Respondent stated that it was a small start up company and that the claimant rarely worked beyond 5pm, and only did overtime on a couple of occasions. The Respondent further submitted that the employee did get his correct break entitlements. The Respondent was unable to furnish working time records to support these assertions.

The Rights Commissioner upheld the claim on the grounds that where there is a conflict of evidence, the onus is on the employer to provide the records to back up its defence. In the absence of records, as required by the Organisation of Working Time Act, 1997, the Rights Commissioner accepted the Claimant's version of events. The Claimant was awarded €4,000.

Case 4

The Claimant was employed from December 2006 until March 2007. He was paid €350 per week for a 40 hour week, and complained that he should have been paid at the General Operative Grade B rate.

The Respondent argued that the Claimant was employed as an apprentice plumber and was paid over the rate for that position.

The Rights Commissioner found that the records provided by the Respondent were deficient and he preferred the evidence of the Claimant. He upheld the complaint and awarded the Claimant €3,771.

Cases 3 and 4 illustrate very clearly that it is the employer who must have documentary evidence to support its position in responding to a claim. In the absence of such records, the employer will most likely lose the case and the employee's version will be accepted.

Case 5

The Claimant was employed by the Respondent from May 2004 until February 2007. As part of his claim, the Claimant stated that the Respondent required him to work in excess of 48 hours per week.

The Respondent acknowledged that the hours of work exceeded 48 hours per week by a small margin, but contended that this was at the demand of the Claimant.

The Rights Commissioner found for the Claimant in relation to the breach of the average 48 hour working week, and required the Respondent to pay the Claimant €2,500.

This case highlights the fact that an employer will be held liable for a breach of the average maximum working week even if the employee is willing/wishes to work the extra hours.

While the awards made are not substantial in a lot of Rights Commissioner cases, many of them could easily have been avoided, and there is always the risk that a substantial award could be made depending on the circumstances of the claim. Furthermore, because there is no minimum service requirement for most claims to the Rights Commissioner, the employer may find itself having to make a payment to a former employee who was only with the company a short period of time.

The Digest is available on the Labour Relations Commission website, www.lrc.ie.